afterwards introduced; (9) and the oath of secresy, as it now stands, was not enjoined for regimental courts martial until 1829. All courts authority to martial have receive evidence affirmation. 443. All courts martial have power and authority, and are required by the mutiny act, and articles of war, (1) to administer an oath to every witness or other person who may on oath, be examined in any matter relating to any proceeding before them other than to those who are by law empowered to make or solemn a solemn affirmation; [§ 462] but the power of administering an oath does not apply to the examination of any persons before the court is itself sworn. The exception does not apply to members of the court, (2) or the officiating judge advocate, and cases of officers objecting to be sworn have arisen on several occasions within the last few years. (3) an oath, 444. An oath (4) is an outward pledge given by the person Definition of who takes it, that his attestation or promise is made under an immediate sense of his reponsibility to a Divine Reing: who, according to his belief, will be displeased at being called upon to witness the utterance of a falsehood. The form may, and more often does, contain a virtual or a direct expression of accountability; (5) and this is the least notion of Deity which is consistent with the nature of an oath, in that sense (9) "Or a court martial" has been Jews' form of administering the oath since added. (1) M.A.13. A.W.153. 31 & 32. Vict. c. 72, s. 14. (2) Since 1867 jurors objecting to be sworn are allowed to be sworn, may make a declaration.-30 & 31 Vict. c. 35, s. 8. (3) At a general court martial at Bellary, 22nd February, 1847, a field officer refused to be sworn. The court could not legally dispense with the oath, but being more than the legal number got over the difficulty by proceeding with the trial without him, reporting the circumstances to the commander in chief at Madras. Hough's Precedents, 714.-Captain Hale, R.E., mentions the case of an officer at Gibraltar objecting to be sworn in 1867. -B. A. & N. Review, iii. 370. (4) It is no part of the writer's present work to assert the lawfulness of a Christian man's oath, but he can not forbear pointing to the example of our Lord (St. Matthew, chap. XXVI., 63, 64), in answering upon the adjuration of the high priest, which was the to a witness. He ventures to add an (5) The energy of the usual form as it may be received by a court martial for witnesses, may be deviated from, when other form more binding. A peer of parliament must be sworn. The ceremony accompanying an oath is not prescribed, not being in any case essential. Form observed on ordinary occasions. Roman on the Book Mahomedans, in which alone it can be administered as legally binding in any court of justice, where the necessity of this sanction is imperative by act of parliament. 445. The hundred and fifty-second article of war directs that all persons who give evidence before any court martial other than those who are by law empowered to make a solemn affirmation, [§452] are to be examined on oath, in the following words: "The evidence which you shall give before this court shall be the truth, the whole truth, and nothing but the truth. So help you God." 446. Peers are sworn as other witnesses; nor does their privilege of giving judgment on honour, and not on oath, apply when assisting as members of a court martial. 447. It is obviously most conducive to truth to swear all witnesses according to the particular form which they may deem most solemn, and with whatever ceremonies may be likely, from previous associations, to create the greatest impression, and so promote the object of the law in requiring a religious sanction. On this principle the external ceremony, not being the essence of the oath, is held to be matter of form. The words are prescribed for military witnesses, [§446] but the outward act is still left in all cases to custom. Ordinarily the member or witness takes the bible or new testament in his right hand ungloved, and then kisses it: with a Roman catholic the book is closed and a cross is marked on the cover. If the oath be taken on the common prayer book which hath the epistles and gospels, it is good enough, and perjury upon the statute may be assigned upon this oath. (6) Mahomedans of different sects are sworn on the koran, sometimes kissing it, or placing it on their head. Jews are sworn on the pentateuch. (7) Sikhs on the grinth. Hindoos may be sworn by the vedas. On the occasion where the legal validity of a heathen's oath was first affirmed, (8) the (6) 2 Keble, 314, contra by Windhom of a psalm book only. A witness professing Christianity objected to be sworn on the Evangelists, and was sworn on the Old Testament, on stating that he considered that to be binding on his conscience.-Ryan and Moody, N. P. C. 77. See § 449. (7) Where a Jew had assumed a false name and been sworn as a Christian on the New Testament, and a new trial was applied for on this ground, it was refused, as by taking the oath he clearly subjected himself to all the temporal obligations.—1 Phillips, 18. (8) The often quoted case of Omychund v. Barker, Atkyns, 21-51. "Certain of the witnesses, subjects of the Great Mogul, and professing the Gentoo religion, had been sworn at Calcutta, a factory within that country," in Hindoo witnesses were sworn by touching a brahman's foot; in the present day at Calcutta, the witness usually takes in his hand holy water from the Ganges and leaves of a sacred plant, the toolsee, or sweet basil; but the form of Hindoo Their oaths oath varies according to caste and the part of India. very various. It would not appear neces any more precedents of form of oath. 448. It has been recommended to collect some account of the forms of oath most likely to be required by courts sary to give martial, but a brief compilation would far exceed the limits of this work, and, if complete, would be more curious than practical, as the proper form is in most cases easily ascertained in each country when required. It would be impossible to collect information which might be relied on in every case, and the attempt would most certainly (9) fail, precisely where information might possibly have been useful. 449. The object is to use the oath which most strongly impresses the obligation of telling the truth; and as a rule this will be that authorized by the custom of the country; but a court martial must allow any form the witness declares to be binding on his conscience. The 1 & 2 Vict. c. 105 enacts that every person shall be bound by an oath, provided the same shall have been administered in such form and with such ceremonies as he may declare to be binding, and, in case of wilful false swearing, shall be punished in the same manner as if it had been administered with the form most commonly adopted. 450. The persons by whom the oaths shall be administered to the court are specified in the articles of war: [§ 520] witnesses are usually sworn by the judge advocate at general, 1742, according to the most solemn form of their religion, and after the prescribed words had been recited to them. The admission of their evidence was objected to, not only upon technical grounds, but also on the broad principle that it was improper for a Christian court to accept an oath sworn by false gods. After hearing the arguments of the leaders of that day, and taking very ample time for consideration, the lord chancellor (Hardwicke) overruled the objection. (9) In 1835 the writer was a member of a general court martial at Fort Willshire, on the eastern frontier of the Cape, when several Caffres were examined, and took the same oaths as in trials amongst themselves. We could not have found precedents in The most of oath should but a court solemn form be adopted, martial may allow any, and false nevertheless punishable. swearing is Form of administering baths, by whom to witnesses, to the court, by a priest, to a Jew. Subterfuges of dishonest witnesses. The manner in which an oath ought not to be considered unimportant. and by the president at other, courts martial: but if the opinion or prejudice of a witness should render it expedient, the oath may (in open court) be administered by a minister of his religion, as is usual with natives of India. It may be observed that a Jew who wears his hat in the synagogue, should wear it whilst being sworn. Upon the same principle (1) soldiers, who remain covered in the presence of the court, invariably uncover whilst taking the oath. Jews regard no oath as obligatory unless their head is covered; nor is their folly, to borrow the language of a modern treatise, (2) a single shade more degrading than the subterfuges by which too many of our own countrymen attempt to deceive both themselves and justice. It is notorious, for example, not only at the Old Bailey, (though that court has given the name to this particular species of fraud), but elsewhere, that many a witness, if he can but escape observation and kiss his thumb instead of the book, will pledge himself to any falsehood without apprehension of incurring the guilt of perjury; another shift resorted to by the dishonest is to say nothing, but when the oath is recited in the second person, to kiss the book, and so fancy they have escaped the responsibility. 451. The decent solemnity, which is customary at courts is administered, martial is very different from the unimpressive and irreverent manner of administering oaths too often observable in civil courts; nor is this favourable contrast unnoticed by the learned author before referred to, by whom also it is most judiciously remarked, that as the manner in which the thing is done has often a far greater influence upon the generality of mankind than the real character of the thing itself the mode of administering an oath becomes a subject of very great importance. OATH DISPENSED not only in certain cases of conscientious scruple, 452. Courts martial had, for many years, been empowered, under the provisions of special acts of parliament, to receive the affirmations of Quakers, Moravians, and certain other persons who entertain a conscientious objection to an oath; and also, in India, (3) in the case of high caste brahmans and other natives, who hold the usual form of oath (1) The custom of taking off the right glove no doubt originated in a reverential feeling for the religious act of a solemn appeal to God. (2) Tyler on Oaths (1836), 47. (3) The special provisions of the Indian mutiny act were embodied in the mutiny act in 1863.-M.A.96. statute, all persons which permits refusing from motives to be criminal pro conscientious to be forbidden by their religion. This relief was extended but also under the provisions in 1861 by an act of parliament enacting that, "If any of a general person called as a witness in any court of criminal jurisdiction in England or Ireland, or required or desiring to make an affidavit or deposition in the course of any criminal proceeding, shall refuse or be unwilling, from alleged conscientious motives, to be sworn, it shall be lawful for the court or judge, or other presiding officer or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration, in the words following: videlicet, and my “I, A.B., do solemnly, sincerely, and truly affirm declare, That the taking of any oath is according to religious belief unlawful; and I do also solemnly, sincerely, and truly affirm and declare, &c." (4) This "&c." of the act may of course be expanded according to the circumstances of any particular case; and the Queen's Regulations authorize, but do not imperatively enjoin, the completion of the solemn affirmation by the words "That I will speak the truth in the matter now under investigation." (5) sworn in ceedings, to make a solemn declaration. affirmation or Oath also dispensed with 453. In addition to the case of alleged conscientious objections, courts martial, when they require the testimony in the case of of persons insensible to the obligations of an oath, are enabled to receive it for what it is worth, and to dispense with an oath which in their case would be a meaningless formality. Ever since 1844 they have been able to avail themselves of a relaxation of the law of England, under the conditions imposed by the colonial acts, in those colonies where, by virtue of the act 6 Vict. c. 22, the colonial legislatures have made laws or ordinances for the savages, admission of the unsworn testimony, "in any court" of "tribes of barbarous and uncivilized people, who, being destitute of the knowledge of God and of any religious belief, are incapable of giving evidence on oath in any court. of justice." In the year 1869 the principle of the old law was entirely reversed, and it was enacted that "If any person called to give evidence in any court of justice, (4) 24 & 25 Vict. c. 66, s. 1. 64 (5) May be given." Q.R.750. The form specified in the latter part of this paragraph [§ 453] seems prefer- |